Telangana High Court
K. Kumaraswamy, vs The Regional Manager, Apsrtc ... on 8 November, 2022
Bench: J Sreenivas Rao
1
JSR, J
WP No.15092 of 2005
HIGH COURT FOR THE STATE OF TELANGANA
W.P.No.15092 OF 2005
Between
K. Kumaraswamy, S/o. K. Balaiah
Hindu, aged 56 years, Controller (E-67989)
APSRTC, Narayanapet Bus Depot,
Mahabubnagar District.
...Petitioner
And
The Regional Manager, APSRTC
Mahabunagar Region at Mahabubnagar
And two others.
...Respondents
DATE OF THE ORDER PRONOUNCED: 08.11.2022
SUBMITTED FOR APPROVAL:
HONOURABLE SRI JUSTICE J.SREENIVAS RAO
1. Whether Reporters of Local newspapers Yes/No
may be allowed to see the judgment?
2. Whether the copies of judgment may be Yes/No
marked to Law Reporters/Journals
3. Whether Their Lordships wish to Yes/No
see the fair copy of the judgment?
___________________________
JUSTICE J.SREENIVAS RAO
HONOURABLE SRI JUSTICE J.SREENIVAS RAO
+W.P.No.15092 OF 2005
% DATED 08TH NOVEMBER, 2022
2
JSR, J
WP No.15092 of 2005
Between
# K. Kumaraswamy, S/o. K. Balaiah
Hindu, aged 56 years, Controller (E-67989)
APSRTC, Narayanapet Bus Depot,
Mahabubnagar District.
...Petitioner
And
$ The Regional Manager, APSRTC
Mahabunagar Region at Mahabubnagar
And two others.
...Respondents
! Counsel for the petitioner : Sri P. Venkateshwer Rao
^ Counsel for respondents : Sri Toom Srinivas
< GIST :
> HEAD NOTE :
? Cases referred: :
1
2002 (2) ALD 121 (DB).
2
2021 Law Suit (SC) 541
3
2016 (6) ALD 734
4
2016 (3) ALD 258
3
JSR, J
WP No.15092 of 2005
HONOURABLE SRI JUSTICE J.SREENIVAS RAO
W.P.No.15092 OF 2005
ORDER:
Heard Sri P. Venkateshwer Rao, learned counsel for the petitioner
and Sri Toom Srinivas, learned Standing Counsel for the respondents.
2. The petitioner filed this writ petition under Article 226 of
Constitution of India seeking the following relief :
".... to issue a writ or order or direction more particularly one in
the nature of writ of Mandamus declaring that the action of the
respondents in not correcting the date of birth of the petitioner
as 04.01.1951 instead of 21.04.1950 as bad, arbitrary, illegal,
unjust and unreasonable and consequently direct the
respondents to correct the date of birth of the petitioner as
04.01.1951...."
3. The learned counsel for the petitioner submits that the petitioner
was appointed as "Conductor" in the respondent-corporation on
29.04.1977 and thereafter he was promoted as "Controller". The
actual date of birth of the petitioner is 04.01.1951 but it was wrongly
mentioned in his service record as 21.04.1950. He further submits
that the petitioner submitted representation to the concerned
authorities of the respondent-corporation and they received the same
on 30-01-1999 but they have not taken any steps to correct the date of
birth in the service records without any reasons and the petitioner is
JSR, J
WP No.15092 of 2005
entitle for correction of his birth as 04.01.1951 instead of 21-04-1950
and the petitioner is entitled all the service benefits for the said
period.
3.1 In support of his contentions the learned counsel relied upon the
judgment reported in M. Vijaya Bhaskara Reddy V. High Court of
Andhra Pradesh1.
4. On the other hand, Sri Toom Srinivas, learned Standing Counsel
for the respondent-corporation submits that at the time of
appointment the petitioner did not produce any documentary evidence
with regard to proof of his age and due to the non-submission of
education qualification certificate/age proof, the petitioner was
directed for medical examination to assess his age and he further
submits that as per 19 of Service Regulations 1964, of the respondent-
corporation specifically says that "(i) every person on entering the
service of the Corporation shall declare his date of birth which shall
not differ from declaration. Express or employee, made by him for any
public purpose before entering such service. For the said benefits, the
date of birth is recorded in a school or college certificate shall be
adopted without any modification. (2) (b) where a person concerned is
unable to furnish satisfactory evidence of his age, it should be
2002 (2) ALD 121 (DB).
JSR, J
WP No.15092 of 2005
assessed by a Medical Officer of the Corporation and the age so
assessed or the age as declared by the person, whichever is more, shall
be accepted as final and the employee shall be assumed to have
completed that age on the date of attestation by the medical officer".
4.1. The learned counsel for the respondent-corporation submits that
the petitioner was directed for medical examination and the date of
the birth was recorded by the medical officer as 27 years as on
21.04.1977. Thus, the date of birth was recorded in the service
register as 21.04.1950. He further submits that as per clause (3) of
Service Regulations, 1964 the date so recorded shall be held to binding
and no alternation of such date shall be permitted subsequently. The
petitioner submitted Form of Declaration for guaranteed provident
fund wherein the petitioner did not mention the date of birth and the
specific column of date of birth is kept blank that it clearly shows that
he had no proof of birth. He further submits that in the year 1989 the
petitioner mentioned his date of birth as 04.01.1951 in APSRTC PF (T)
and APSRTC SRBS nomination form only without any proof of service.
4.2 The learned counsel for the respondent-corporation further
submits that the petitioner has not submitted any documentary
evidence showing his date of birth at the time of initial appointment.
The respondent-corporation after conducting medical examination
determined his date of birth as per the regulations and the same was
JSR, J
WP No.15092 of 2005
accepted by the petitioner. The petitioner has attained the age of
superannuation and the respondent-corporation settled all the
terminal benefits. He further submits that as per the regulations of
the respondent-corporation, the petitioner was examined by the
medical officer and determined his age as 27 years as on 21.04.1979
and basing on the medical officer report, the date of birth of the
petitioner was determined as 21.04.1950 and the same was accepted
by the petitioner and after a lapse of more than two decades petitioner
raised the dispute for correction of date of birth that too at the fag end
of the time and the petitioner is not entitle any relief.
4.3. In support of his contention the learned counsel for the
respondent-corporation relied upon the judgment reported in
Karnataka Rural Infrastructure Development Limited Vs. T.P.
Nataraja & Ors2 and Sundilla Lingaiah V. Singareni Collieries Co. Ltd.,
Hyderabad and Others3 contending that the petitioner is not entitle
for the relief of correction of date of birth.
5. The issue for consideration is "Whether petitioner is entitled to
maintain the Writ Petition instituted after rendering more than
two decades of service, for correction of date of birth in the service
records"?
2021 Law Suit (SC) 541
2016 (6) ALD 734
JSR, J
WP No.15092 of 2005
6. Admittedly, the petitioner filed the present writ petition before
this Court on 12.07.2005 for seeking correction of date of birth as
04-01-1951 instead of 21-04-1950. As per the record it clearly shows
that the petitioner was appointed as "Conductor" in the respondent-
corporation on 29.04.1977 and his date of birth was recorded as
21.04.1950 in the service records. The specific contention of the
respondent-corporation is that at the time of appointment the
petitioner did not produce any reliable evidence to prove his date of
birth. The respondent-corporation after following the due procedure
as per the regulations, the petitioner was referred for medical
examination and the medical officer assessed his age as 27 years as on
21-04-1977 and basing upon the medical officer's assessment report
the petitioner date of birth was determined as 21.04.1950 and the
petitioner was accepted for the same and the said date of birth was
recorded in all the service records of the petitioner. The petitioner
after a lapse of long period more than 25 years filed the Writ Petition
for correction of his date of birth. Therefore, there is inordinate delay
on the part of the petitioner in approaching this Court to invoke the
extraordinary jurisdiction under Article 226 of the Constitution of
India seeking correction of date of birth.
7. The judgment relied by the petitioner reported in M. Vijaya
Bhaskara Reddy Vs. High Court of Andhra Pradesh (D.B.) supra
JSR, J
WP No.15092 of 2005
"wherein it is held that the change of date of birth cannot be rejected on
the mere ground of estoppel and rejection of on the ground of estoppel
is bad". In the said case before the Hon'ble Division Bench, the
petitioner's date of birth was recorded on the basis of SSLC certificate
as 15.06.1948 in the service records wherein the petitioner sought
correction of date of birth as 15.08.1949 and the petitioner therein
filed a suit O.S. No. 44 of 1981 for a declaration that his actual date of
birth is 15.08.1949 and the said suit was decreed. Pursuant to the
same, the petitioner therein submitted representation for seeking
correction of date of birth when the respondents therein rejected the
claim of the petitioner. The Division Bench of this Hon'ble Court
allowed the said writ petition. Whereas in the instant case on hand,
the petitioner has not submitted any documentary evidence,
certificates with regard to proof of his age and the petitioner was
referred to the medical examination for determination of his age as
per the Regulations of the respondent-corporation and the medical
officer upon examining him, determined his age as 21.04.1950 and
basing on the same the petitioner's date of birth was recorded as
21.04.1950 in the service register of the respondent-corporation.
Hence, the ratio laid down by the Hon'ble Division Bench of this Court
cannot be made applicable to the facts of the present case.
JSR, J
WP No.15092 of 2005
8. In Karnataka Rural Infrastructure Development Ltd., Vs. T.P.
Nataraja & Others supra, wherein the Hon'ble Supreme Court held that
the application of the respondent therein for change of date of birth
was liable to be rejected on the ground of delay and laches. Para 10 of
the said judgment as follows:
"10. Considering the aforesaid decisions of this Court the law on change
of date of birth can be summarized as under:
(i) application for change of date of birth can only be as per the relevant
provisions/regulations applicable;
(ii) even if there is cogent evidence, the same cannot be claimed as a
matter of right;
(iii) application can be rejected on the ground of delay and latches also
more particularly when it is made at the fag end of service and/or when
the employee is about to retire on attaining the age of superannuation".
9. In Sundilla Lingaiah Vs Singareni Collieries as stated supra the
learned single Judge of this Court after considering various reported
judgments of the Hon'ble Apex Court, Division Bench Judgments, and
other judgments of this Court held as follows:
"14. Before parting with the judgment, this Court deems it apposite to
observe that the attitude and tendency of approaching the Courts for
correction of Date of Birth and for further continuation in service, at the
fag end of the service is on higher side in recent times when compared to
past. In some deserving cases, such people are emerging successfully also.
But there must be proper check and thorough verification of the claims,
touching the alteration of date of birth, otherwise the same would be a
burden on the State exchequer and the belated claims shall not be
entertained. While considering the claims for correction of Dates of Birth,
it is also incumbent and obligatory on the part of the authorities to
JSR, J
WP No.15092 of 2005
simultaneously examine the corresponding age of the claimants at the
time of passing the examinations such as Seventh Class, Tenth Class etc.,
also and their relevant eligibilities pertaining to the age, unless the same
being exempted by competent authority, as on the date of such
examinations. If any claimants are permitted for such examinations
without the prescribed age, in the absence of such exemption of age
granted by the competent authority, the same shall be a relevant criteria
and factor for examining the claims for alteration of Date of Birth."
10. In Md.Afzal Vs. Singareni Collieries Co. Ltd., Kothagudem,
Khammam District and others4 learned single Judge of this Court by
referring the Hon'ble Supreme Court judgments.
"5 (i) State of Madhya Pradesh and Others Vs. Premlal Shrivas, (2011)
9 SCC 664, wherein the Supreme Court held as follows:
"Change of date of birth in service record at fag end of career can
be permitted only in exceptional cases, on irrefutable proof. The
Court or Tribunal should be loath to allow correction of date of birth
in service record of incumbent at fag end of his career unless it is
satisfied by irrefutable proof of date of birth and that real injustice
has caused to incumbent and claim is in accordance with
procedure prescribed. Circumspection, caution and carefulness
must be observed. The Government Servant cannot claim as a
matter of right the correction of date of birth in service record after
lapse of time fixed by employer, even if he has good evidence to
establish erroneous entry - On facts held, High Court committed
manifest error in allowing change of date of birth after lapse of over
two decades notwithstanding that no period for filing such
application was prescribed".
(ii) In State of Tamil Nadu Vs. T.GV. Venugopalan, (1994) 6 SCC 302,
the Hon'ble Supreme Court held as follows :
"That when date of birth recorded after entry into the service and
countersigned by the Government Servant, it would not be
permitted to be challenged by the Government Servant at the fag
end of the service".
2016 (3) ALD 258
JSR, J
WP No.15092 of 2005
Dismissed the Writ Petition holding that the petitioner therein raised
the issue of date of birth at the fag end of the service, and the Court
will not exercise its jurisdiction under Article 22 of the Constitution
of India to grant relief of correction of date of birth.
11. In this instant case, the petitioner did not produce any
documentary evidence showing his date of birth at the time of his
initial appointment and the petitioner was referred for medical
examination and the medical officer assessed his age as 27 years as on
21-04-1977 and basing upon the medical officer's assessment report
the petitioner date of birth was determined as 21.04.1950 and the
petitioner was accepted for the same and the said date of birth was
recorded in all the service records of the petitioner. The petitioner
after a lapse of long period more than two decades filed the Writ
Petition for correction of his date of birth. Obviously, there is no
variation in the records maintained by the respondent-corporation.
After lapse of more than 22 years, he submitted a representation for
seeking correction of his date of birth and he filed the present writ
petition in July, 2005. The petitioner having rendered services for
more than two decades, he is not suppose to contend that he is not
aware of the actual date of birth entered in the service record.
JSR, J
WP No.15092 of 2005
12. Since the petitioner raised the issue of date of birth in the
present writ petition after long period of more than two decades and
at the fag end of his service, this Court is not inclined to exercise its
jurisdiction under Article 226 of the Constitution of India to grant
relief of correction of date of birth.
13. For what all stated hereinabove, there are no merits in the writ
petition and accordingly the writ petition is dismissed. There shall be
no order as to costs.
14. Miscellaneous petitions, if any, pending in this writ petition, shall
stand closed.
_____________________________
JUSTICE J.SREENIVAS RAO
Dated: 08.11.2022
Skj
Note :
L.R. copy to be marked.
(B/o)
Skj
JSR, J
WP No.15092 of 2005
JSR, J
WP No.15092 of 2005
HONOURABLE SRI JUSTICE J.SREENIVAS RAO
W.P.No.15092 OF 2005
Dated: .11.2022
Skj.
